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Indian Nations Client Update - October 2010

October 20, 2010

Supreme Court Indian Law Docket
The Supreme Court on October 12th agreed to hear the appeal of Madison County, New York from the decision of the Second Circuit in Oneida Indian Nation of New York v. Madison County, Oneida County, N.Y., 605 F.3d 149 (2d. Cir. 2010). The Oneida Indian Nation of New York had reacquired in the late 20th century lands in Madison and Oneida counties that the State had purchased from the Tribe illegally in the early 19th century. The Tribe declined to pay property taxes on the ground that the lands were part of its sovereign territory and Congress had never authorized their taxation, triggering county foreclosure proceedings. The Tribe brought a federal action to enjoin the foreclosure but the Supreme Court, in its 2005 Sherrill decision, held that too much time had passed and the lands were taxable. On remand, however, the district court enjoined the foreclosures anyway, ruling that the Tribe's reservation was not disestablished (an issue the Supreme Court had expressly declined to address), that the Tribe was immune from suit and that the foreclosure was barred by 25 U.S.C. § 177 and state law. The Second Circuit affirmed, but solely on the ground of sovereign immunity. If the Court reverses the Second Circuit and holds that sovereign immunity does not apply to foreclosure proceedings, it will likely also reach the issue avoided by the lower court - whether Section 177 applies to lands purchased by a tribe in the modern era and held in fee simple title.

The only other case accepted by the Court for review in the 2010-11 term is United States v. Tohono O'Odham Nation, in which the Court will decide whether a tribe can seek injunctive relief against the United States in the district court based on allegations of fiduciary breach (mismanagement of trust assets) and, at the same time, seek money damages in the Court of Claims based on the same allegations. The Tohono O'Odham Nation case will be argued November 1st.

By denying review in four other cases, the Court permitted the following lower court judgments to stand:

  • The New York Court of Appeals' judgment in Cayuga Indian Nation of New York v. Gould, 2010 WL 1849339 (N.Y.) that (1) Cayuga lands alienated in violation of the Nonintercourse Act, 25 U.S.C. § 177, were "reservation" lands for purposes of New York tax laws and (2) absent the implementation of a statutory or regulatory scheme addressing the specific tax collection issues posed by the retail sale of cigarettes on Indian reservations, the Tribe's retailers could not be prosecuted for the possession and sale of untaxed cigarettes. (See June 2010 Update.)
  • The Idaho Supreme Court's judgment in State v. Maybee, 2010 WL 143459 (Idaho), that the enforcement of Idaho laws prohibiting the sale of unstamped cigarettes over the internet by a member of the Seneca Nation operating from the Nation's territory did not violate the seller's rights under the Indian Commerce Clause of the U.S. Constitution. (See February 2010 Update.)
  • The Ninth Circuit Court of Appeals' judgment in Kaltag Tribal Council v. Jackson, et al., 2009 WL 2736172 (9th Cir. 2009), that the Kaltag Tribal Court had the authority to issue an adoption judgment and issue a new birth certificate based on the judgment and that such judgment was entitled to recognition by state authorities, notwithstanding that the Tribe had no reservation: "Reservation status is not a requirement of jurisdiction because a Tribe's authority over its reservation or Indian country is incidental to its authority over its members." (See October 2009 Update.)
  • The Second Circuit Court of Appeals' judgment in Schaghticoke Tribal Nation v. Kempthorne, et al., 587 F.3d 132 (2d Cir. 2009), that the decision of the Department of the Interior not to acknowledge the plaintiff's existence as a tribe pursuant to federal acknowledgement regulations did not violate the Administrative Procedures Act, notwithstanding the plaintiffs' allegations that Connecticut exercised improper political influence on the Department. (See November 2009 Update.)

G&K's "Government Audit" Team Can Help Tribes Protect Themselves From Official Misconduct
G&K's legal audit team helps tribes protect the integrity of their governmental and enterprise operations by (1) advising tribes how to establish institutional safeguards that minimize the risk of fraud and other dishonest acts, (2) performing discrete, independent investigations and audits to determine whether wrongdoing has occurred, (3) responding swiftly and effectively when acts of wrongdoing are discovered to limit damage, and (4) negotiating with federal regulators to minimize penalties and other adverse consequences.

The team includes five former federal prosecutors, former state assistant attorneys general, and attorneys with FBI and state prosecutorial experience. Combined with the Indian country experience of G&K's Indian Nations law team, G&K can provide high quality, cost effective representation that safeguards a tribe's political and financial standing, enhances the credibility of tribal government in the eyes of its citizens, and strengthens tribal sovereignty.

For more information, contact Brian Pierson at 414-287-9456 or bpierson@gklaw.com.

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